SARDAR MUHAMMAD DOGAR, J.--- Basharat .(18) and his brother Ghulam Mustafa (20) were tried by the Additional Sessions Judge, Sialkot, for having -murdered their maternal-uncle Muhammad Sharif, during the night between 19th and 20th of April, 1988, at 12-15 on the passage at a distance of 5-6 Killas from village Abadi in the area of village Bhullar, at a distance of 6 miles from Police Satation Motra, District Sialkot.
Learned trial Judge vide judgment, dated 28-9-1989 convicted both of them under section 302/34, P.P.C. And sentenced them to death plus to pay a fine of Rs.5,000 each in default whereof to undergo R.I. For one year each.
2. The appeal filed by the convicts and the reference made by learned trial Judge for confirmation of death sentences are being disposed of together.
3. F.I.R. Exh.P.F./1 was registered at the police station by Abdur Rehman, A.S.I. P.W.7 at 2-30 a.m. On 20-4-1988 on receipt of statement Exh. P.F. Of Akbar Ali P:W.11, recorded by Ahmad Hassan, S.H.O.
P.W.13 at Chowk Bhallowali at 2-15 a.m. On the same day. .
According to F.I.R., Mst. Ruqaiyya Bibi wife of Muhammad Sharif, (deceased) had informed the complainant at his house at Ishawela on 19-4-1988 that her husband Sharif (brother of Akbar Ali), who had gone to village Aada at noon time, to bring money from his nephews (sister's sons)
Basharat etc., had not returned. She asked him to inquire about that. The complainant went to the house of Basharat in- village Aada on a motor-cycle alongwith his son Liaquat Ali and Muhammad Yusuf P.W.12. Muhammad Sharif (deceased) was present there alongwith the appellants. He was demanding the pay4tent of Rs.15,000 which he had spent while pursuing the case of murder in which Basharat and Ghulam Mustafa appellants had been challaned. Basharat and Ghulam Mustafa were not admitting the claim. It was decided that the matter be got settled from Inayat resident of village Bhullar. They all started for village Bhullar. The complainant and his son Liaquat Ali were riding the motor-cycle, driven by Muhammad Yusuf P.W.12 while the deceased and the appellants rode another motor-cycle. They were 5/6 Killas short of village Bhullar when Basharat who was going ahead on the motor--cycle, stopped and informed the complainant and the P.Ws.
That plug of his motor-cycle was not working., Muhammad Yusuf got down from the motor--cycle but kept the light of his motor-cycle on, so that Basharat could clean the plug. No sooner Muhammad Sharif got down from the motor-cycle, Ghulam Mustafa brought out a revolver from his fold and fired 2 shots at him, one of which struck him on the chest while the other hit him on the neck, near left ear. Thereafter Basharat brought out a Chhuri from his fold and gave injuries to Muhammad Sharif on the neck, flank, buttocks and both thighs. Muhammad Sharif fell down in the field adjacent to the passage. Basharat inflicted injuries to him there also. When the complainant and his companions went ahead to rescue him, Ghulam Mustafa pointed the revolver towards them and told them that if anybody intervened he will not be spared. When Basharat and Ghulam Mustafa felt assured that Muhammad Sharif had died, they went away to Piroo Chak riding motor- cycle No.STA/5845.
4. For the motive for the occurrence, it is stated therein that a year ago Basharat and Ghulam Mustafa were challaned in a murder case. Muhammad Sharif (deceased) being their maternal- uncle pursued their case and incurred expenditure from his pocket. They had returned home 6 months ago, after acquittal. Muhammad Sharif was demanding the money. Basharat etc. Felt unhappy and so murdered him to get rid of him.
5. Ahmad Hassan, S.H.O. After despatching statement Exh. P.F. To the police station for registration of case, went to the spot and despatched the dead body for post-mortem after preparing necessary papers. He also collected blood-stained earth from there vide memo. Exh P.C. And recorded statements,, of the P.Ws. Basharat appellant was arrested by him on 28-4-1988. Motor- cycle P.6 (No.STA/5845) which was in his possession at the time of arrest, was taken into possession vide memo. Exh. P.H. Chhuri P.5 got recovered by him, was taken into possession vide memo. Exh P.E. On 30-4-1988. As Ghulam Mustafa could not be arrested, the S.H.O. Obtained his warrants of arrest and deputed Aftab Constable on 9-5-1988 for execution of the warrants. As he could not be arrested in spite of warrants of arrest, the S.H.O. Got issued proclamation Exh. P.K. And entrusted the same to Aftab Constable for service.
The S.H.O. Succeeded in arresting Ghulam Mustafa on 17-8-1988 32 bore revolver. P.7 alongwith live bullets P.7/1-4 found in his possession at the time of arrest was taken into possession vide memo.
Exh. P.O. Challan was submitted to Court after completion of necessary investigation.
6. Statements of seventeen P.Ws. Were recorded at the, trial.
Dr. Muhammad Zafar who had performed autopsy on 20-4-1988 at Death was opined to have occurred due to shock and haemorrhage, resulting from all the injuries. Injuries Nos.2 to 4, 8 to 13 and 33 which were specifically opined to have caused the death, were defied as follows: "(1) A grazing with blackening 1 c.m. x circular 2-1/2 c.m. Back to the left ear lobula.
(2) An incised wound 2-1/2 c.m. x 1 c.m. x 6 c.m. Deep into the neck and below the left angle of mandible, obliquely.
(3) An incised wound 2-1/2 c.m. K 1 c.m. x 8 c.m. Into the neck half c.m. Below the injury No.2 obliquely.
(4) An incised wound 2 c.m. x 1 c.m. x 4 c.m. Into the left side of neck 6-1/2 c.m. Above the middle of left clavicle.
(8) An incised wound 3 c.m. x 1 c.m. Left chest cavity deep 15 c.m. Lower and outer to the super sternly notch, obliquely.
(9) An incised wound 2-1/2 c.m. x 1 c.m. Into left chest cavity deep at the left nipple transverse.
(10) An incised wound 3-1/2 c.m. x 1 c.m. Cavity deep at the front of and lower part of left chest to middle obliquely.
(11) An incised wound 2-1/2 c.m. x 1 c.m. Muscle deep on the outer aspect of left chest 7 c.m. Below and outer aspect of left nipple.
(12) An incised wound 2-1/2 c.m. x 1/2 c.m. x cavity deep at the left hypochondria in middle.
7.Ocular account was deposed,, to by Akbar Ali P.W.11 and Muhammad Yusuf P.W.12 Akbar Ali repeated the facts given by him in the F.I.R. During cross--examination he stated that neither he nor his son owned any motor-cycle and that they were taken by Muhammad Yusuf P.W on a motor-cycle which he had taken from the truck-stand where he was working. He stated that as there was no residential area near the place of occurrence, therefore, they did not raise any hue and cry. He stated that Mst. Ruqaiyya was married to Muhammad Sharif 6/7 years ago. However, he expressed ignorance that she was married to Ashiq Ali Barber prior to that and that her marriage with the deceased was performed after getting divorce from Ashiq Ali Barber. He denied the suggestion that the accused had given a beating to his son Liaquat Ali P.W. As they suspected that he had cultivated illicit relations with Mst. Ruqaiyya. He denied the suggestion that the accused had been named by him in connivance with his son Liaquat Ali and Mst. Ruqaiyya wife of the deceased.
8. Muhammad Yusuf P.W.12 while corroborating the statement made by P.W.11 denied that he was related to the deceased or the complainant in any manner. While admitting that he did not own any motor-cycle, he stated that he had taken the motor-cycle from his employer who had purchased the same from some one. According to him, some persons had come from village Bhullar after about an hour of the occurrence. He denied the suggestion that he did not know driving motor-cycle.
9. Muhammad Siddiq who appeared as P.W.5, stated that Basharat accused had obtained motor- cycle No.STA/5845 from him sometime before the occurrence. He stated that he had taken the motor-cycle on Superdari after the occurrence.
10. Allah Ditta, A.S.I. P.W.9 claimed that the Investigating Officer had arrested Basharat appellant in his presence while riding motor-cycle P.6 and that he had attested the recovery memo. Exh P.H. In that regard (motor-cycle P.6 is numbered STA/5845). He also claimed to have witnessed the recovery of blood-stained Chhuri at the instance of Basharat appellant. During cross--examination he stated that the room from where the accused had got recovered Chhuri P.5, was locked. He denied the suggestion,, that neither motor-cycle was taken into possession from custody of the accused (Basharat) nor had he led to the recovery of Chhuri P.5.
11. Aftab Ahmad, Constable who had been entrusted the execution of warrants of arrest of Ghulam Mustafa appellant and who was deputed for service of proclamation issued against him (Ghulam Mustafa) appeared as P.W.10 and deposed those facts.
12. Ahmad Hassan, S.H.O. Who had recorded statement Exh. P.F. On the basis of which formal F.I.R.
Exh.P.F./1 was recorded at the police station, had Vol. Investigated the case and submitted challan to Court after arrest of both the accused and recoveries at their instance, appeared as P.W.3 and deposed those facts. During cross-examination he stated that he had started spot inspection at 5- 30 a.m. He stated that Akbar Ali and Muhammad Yusuf P.Ws. Were present during the spot inspection. He stated that he had examined Muhammad Siddiq owner of motor-cycle NO.STA/5845 at the police station. He denied the suggestion that he had fabricated a false case against the appellants and planted recoveries of weapons of offence and motor-cycle in order to strengthen the prosecution case.
The statements of the remaining P.Ws. Are more or less of a formal nature.
13. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Basharat r appellant stated as `why this case against you and why the P.Ws. Have deposed against you?
"I am innocent and have been falsely involved in this case by Akbar Ali complainant with the connivance of his son Liaquat Ali (given up P.W.) and Mst. Ruqaiyya Begum wife of the deceased.
Said Mst. Ruqaiyya Begum is the daughter of my real uncle Ilam Din. Mst. Rasulan Bibi the mother of Mst. Ruqaiyya had got divorce from Ilam Din and had married with one Ashiq Hussain Barber resident of Chak No.104 Sargodha. Mst. Ruqaiyya was firstly married in village Dholaywali, Tehsil Daska. Mst. Rasulan Bibi got divorce of her daughter Mst. Ruqaiyya Begum from Dholaywali and married her with Muhammad Yusuf Barber the real brother of aforesaid Ashiq Hussain Barber. I and my family members abused and reprimanded the aforesaid ladies after marriage with moeens.
Ultimately Mst. Ruqaiyya Begum,, was divorced by Muhammad Yusuf Barber. Akbar Ali complainant then married Mst. Ruqaiyya Begum with my maternal--uncle Muhammad Sharif deceased. At the time of occurrence Mst. Ruqaiyya Begum was of the age of about 27/28 years and Muhammad Sharif was about 40/45 years at the time of his murder. Liaquat (given up P.W.) aged about 27/28 years had developed illicit relations with Mst. Ruqaiyya Begum. I and my co---accused brother had abused time and again Liaquat Ali and Mst. Ruqaiyya Begum and directed them to discontinue their bad relations. A quarrel and exchange of abuses had taken place between us and Liaquat Ali P.W. I or my co-accused brother have' no grudge, grouse or enmity against Muhammad Sharif deceased. The motive part of the story is also fabricated one. According to my information it was a blind murder. The complainant party received information about the death of the deceased in their village in the morning and after due deliberations, consultations and aforesaid ill-will resting in the mind of Liaquat Ali and Ruqaiyya Begum they got a false case registered with connivance of the police. I am absolutely innocent."
Ghulam Mustafa appellant made same statement in answer to the same question. Both of them made statements on oath also, wherein they pleaded innocence.
14. We have gone through the evidence with the assistance of learned counsel for the appellants and considered the contentions raised by learned counsel for the parties.
The appellants are real brothers and stand convicted for having murdered their real maternal- uncle. Motive for the occurrence was not any enmity between the parties. The difference, whatever had arisen between the deceased and the appellants, was the demand made by the deceased that the appellants should pay him a sum of Rs.15,000, which he had spent while pursuing the murder case in which they were involved. The appellants during the recording of evidence neither overtly nor covertly denied that they had not been challaned in some murder case and that the case on their behalf -was not pursued by their deceased maternal-uncle. Although in answer to a general question that. They were involved in a murder case and that their maternal-uncle had spent a sum of Rs.15,000 from his pocket to defend them, they had got recorded the answer; `it is incorrect'. However, that does not indicate that they were not challaned in a murder case prior. To this occurrence and that the deceased had not been pursuing the case on their behalf. It is impossible to believe that the complainant while setting up a motive for the occurrence could have fabricated the story that the -appellants were involved in a murder case and that their deceased maternal-uncle on their having return home after acquittal used to demand Rs.15,000 which he had spent while defending them. As such, we find no substance in the argument of learned counsel for the appellants that the prosecution had failed to prove motive for the occurrence.
15. Apparently one feels attracted by the argument of learned counsel .For the appellants that it was highly improbable that the deceased, the complainant and P.W. Muhammad Yusuf would have proceeded to the house of Inayat alongwith the appellants at mid-night to have the matter regarding payment of money, settled from him, but as the witnesses who made statements in that regard against the appellants, were not inimically disposed towards them (the appellants) in any manner, we find it difficult to disregard their testimony, merely or that account. One of them, i.e. Akbar Ali complainant was the uterine brother of the mother of the appellants, He had no differences either with mother of the appellants or the appellants. It seems difficult to visualize that a maternal-uncle would have come up with the false allegation against his sister's sons of having murdered his brother. Muhammad Yusuf the other eye--witness was absolutely an independent witness. He had no intimate and close connections with the deceased or the complainant. He had no axe to gind against the appellants. He, therefore, cannot be dubbed as a false witness. Both the witnesses have corroborated each other on all material points.
Yet another aspect of the matter is that had this occurrence, been not witnessed by the P.Ws. It could not have been reported so promptly.
As is obvious, the occurrence of murder had taken place in the fields, away from the village. Of the deceased and some 5/6 Acres away from the' nearest Abadi. Even if somebody had noted the dead body lying there in the morning, some time would have been taken by the people to identify the dead body and trace out his relatives, i.e. The complainant etc. Had it happened so, the F.I.R.
Could not have been lodged, as it had been done.
16. , The ocular account is also corroborated by the evidence of recovery of blood-stained Chhuri at the instance of Basharat appellant, and motor-cycle No.STA/5845 from his custody at the time of his arrest, and the evidence of A abscondence of Ghulam Mustafa appellant for about four months.
The evidence of motive and the medical evidence also fortify the prosecution case against the appellants.
The appellants had brutally murdered their ~ maternal-uncle. He had done no harm to them, rather, he had been trying for their acquittal and spending money from his own pocket. There is no merit in the appeal. The g same is dismissed. The sentence of death awarded to both the appellants is confirmed. The fine, on recovery from both of them, shall be paid as compensation to the heirs of the deceased.